I came across the Bill titled: Johor Housing and Real Property Board Enactment 2014 to be tabled at the next sitting of the Johor state legislative assembly. I would like to highlight some of the provisions which are contrary to the constitutional provisions.
Section 4 talks about the establishment of the board. Section 4(1)(d) reads as follows:-
Not more that four representatives from any corporation, agencies, or any person who is beneficial to the Board to be appointed by the Ruler.
See identical provision in Section 4 Selangor Housing and Real Property Board Bill 2001. See also Section 6(1)(d) Penang Housing Board Enactment 2010, which says that the State authority shall appoint the members.
Section 4(2) reads as follows:-
A member of the board other than those referred to in paragraphs (a), (b) and (c), shall hold office for a term not exceeding two years and shall be eligible for reappointment, unless he sooner resigns or vacates his office or his appointment is revoked by the ruler.
See identical provision in Section 4(2) Selangor Housing and Real Property Board Bill 2001, where instead of the word “ruler” the words “state authority” are used. See also Section 7 Penang Housing Board Enactment 2010.
Section 4(3) reads as follows:-
The members of the board may be paid such remuneration or allowances as the ruler may determine.
See identical provision in Section 4(3) Selangor Housing and Real Property Board Bill 2001, where instead of the word “ruler” the words “state authority” are used. See also Section 10 Penang Housing Board Enactment 2010.
Section 7: In dealing with the powers to establish corporation, Section 7 reads as follows:-
The board may from time to time, with the approval of the ruler, establish a corporation in accordance with Second Schedule by such name as the board may think fit to maintain, develop or manage any housing plan, project, scheme or industry as determined by the board.
See identical provision in Section 7 Selangor Housing and Real Property Board Bill 2001 where instead of the word “ruler” the words “state authority” are used.
Section 12(1): As to the appointment of director under Section 12(1), Section 12(2) says that the appointment, shall be with the prior approval of the ruler.
The Selangor enactment, Section 12(2) says that the appointment of the executive director shall be with the approval of the state authority.
Section 24 of the Bill says that the board may accept any gift made to the Board for all or any of the purposes specified in the enactment. This provision if allowed to stand could lead to immense abuse.
Section 23: In the Selangor counterpart there is, in Section 23, an identical provision; but not in the Penang Enactment.
Section 26(2) requires the board to submit before July of each year, an estimate of the expenses for the following year to the Ruler and the State authority.
See Selangor enactment Section 25(2) and Penang Enactment Section 31(2).
Section 32(3) reads as follows:-
The board shall within six months after the end of each financial year have its accounts audited and transmitted to the ruler and the state authority, together with a copy of any observations made by the auditor general or the auditor appointed under subsection (2) on any statement or on the accounts of the board and a copy of the annual report referred to in section 34.
Section 31(3) Selangor enactment does not include the term ruler.
Section 33(1) states that the ruler or the state authority may at any time direct such person as he may appoint to make an investigation of the books, accounts and transactions of the board.
See Selangor enactment Section 32(1) says that the minister of finance may at any time direct such person as he may appoint to make an investigation of the books, accounts and transaction of the board. (At page 264)
Section 34(1) requires the board to make and transmit to the ruler and the state authority a report dealing with the activities of the Board.
See Selangor enactment Section 33(1) which does not include the term Ruler.
Section 43(1) empowers the ruler by order published in the Gazette to have the board wound up.
In the Selangor counterpart similar provision is found in Section 42(1) but there is no mention about the Ruler.
Section 49(1) speaks of the director’s power to compound any offence, which I feel is a dangerous provision.
As far as the position of the ruler of any state is concerned, it is clear in that he could only function and act in accordance with the advice of the state executive council or of a member thereof acting under the general authority of the council, except as otherwise provided by the federal constitution or this constitution; but shall be entitled, at his request, to any information concerning the government of the state which is available to the state executive council. (Please see Article 7 at Page 44 - 45 of the Johor Constitution 1895.)
This provision is identical with Article 39 of the federal constitution which reads as follows:-
The executive authority of the federation shall be vested in the yang di-pertuan agong [and exercisable, subject to the provisions of any federal law and of the Second Schedule, by him or by the cabinet or any minister authorised by the cabinet], but Parliament may by law confer executive functions on other persons.
The ruler, therefore, cannot be empowered to act in a manner where the state constitution does not permit. I believe the inclusion of the word “ruler” in the above provisions is an error.
A check with Selangor and Penang enactments, which are identical with the proposed Johor state Bill, the references are to the state authority.
The best way out of the recent controversy is to adopt the term “state authority” and define it as “state executive council” to avoid any further confusion.
K SILADASS is a senior Johor-based lawyer.
